Under the Servicemembers Civil Relief Act, all active-duty military members are afforded certain rights. One of those protections addresses court cases — specifically, what happens if a servicemember cannot appear in court to defend him or herself.

The answer typically depends on what kind of case it is. For example, if an active-duty service member is taken to court over missed rent payments, they do not forfeit the case for not appearing. The SCRA ensures they are allowed to either present their argument in court or pay off any debts they may have accrued. However, the SCRA doesn’t extend the right to every type of legal proceeding that servicemembers could face.

This issue was a topic of conversation in North Carolina’s Surry County Court, which recently clarified the military affidavit requirements for heading into a court case with an active-duty military member.

What happens if servicemembers can’t appear?

This case — and a widespread issue addressed by the SCRA — involves what happens should a servicemember be unable to attend their court hearing due to their active-duty military status.

In many cases, servicemembers need to submit a military affidavit outlining the facts and circumstances surrounding the case. Judges can also request copies of the soldier’s pay statements and additional financial or relevant documents. This will help paint a clear picture of the case at hand, in order to help form an adequate ruling. A military affidavit can also help establish the timeline of service. Then, the court can establish an appropriate hearing date — when the servicemember can attend.

One problem surrounding a military affidavit was when it applied. Most court cases involving monetary disputes — missed rent or loan payments, etc. — require a military affidavit if the servicemember can’t appear in court. The SCRA also ensures that they don’t automatically forfeit the case if they can’t appear. However, not all civil proceedings, like divorces and restraining orders, have these same strict requirements. That is, until this recent ruling from the Surry County Court.

Legal decision could have impact in other areas.

NC court expands use of affidavit

According to the North Carolina-based media outlet The Mount Airy News, the Surry County Court decision deals directly with all civil proceedings involving servicemembers. While a military affidavit has been required for monetary judgments, the new decision expands the need for this document.

The military affidavit covers several key questions. First, whether the defendant is under active-duty military status. It also asks if the plaintiff has verified active-duty status. And it offers room to outline the facts in support of the case.

While this ruling is beneficial for servicemembers — it helps avoid forfeiture of court cases for not appearing — it has created some confusion within the legal system. The main concern is that this rule expands the need for an affidavit. So now some people aren’t sure when this document is necessary and when it isn’t. The problems are compounded when the servicemember doesn’t have an attorney. The Mount Airy News even reported that courts couldn’t finalize some civil proceedings, including divorces, because they were missing these affidavits.

“North Carolina courts see confusion over new rule.”

So the Surry County Court is printing stacks of this document to leave in courtrooms and offices. That way, attorneys and servicemembers can easily get and sign the form before proceeding with their cases.

What may happen in the future with military affidavits

This Surry County Court ruling could set a precedent. While it applies only to this region in North Carolina, the decision may have a widespread consequence in other states. Additional courts may require military affidavits for all civil proceedings. This is something that every lawyer, judge and servicemember should know.

Overall, the goal of this decision is to ensure that servicemembers don’t lose by default if they can’t appear in court due to active-duty status. In most courts across the country, the SCRA ensures this doesn’t happen, albeit mainly for monetary judgments. Based on the Surry County Court ruling, this won’t happen in this part of North Carolina either, for civil proceedings.

Attorney Roy Kaufmann serves as the Director of the Servicemembers Civil Relief Act Centralized Verification Service, located in Washington, D.C. As a recognized authority on the Servicemembers Civil Relief Act, Mr. Kaufmann has published hundreds of articles and hosted many webinars. His teachings help law firms and businesses to remain compliant with the SCRA rules and regulations so as to avoid costly fines.

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